PANKAJAKSHI (DEAD) THROUGH LRS. & OTHERS versus CHANDRIKA & OTHERS

Citation: [2016] 3 S.C.R. 1018 · Decided: 25-02-2016 · Supreme Court of India · Bench: ANIL R. DAVE · Disposal: Disposed off
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Judgment (excerpt)

(2016] 3 S.C.R. 1018 
l 
A 
PANKAJAKSHI (DEAD) THROUGH LRS. & OTHERS 
B 
c 
D 
E 
F 
G 
H 
v. 
CHANDRIKA & OTHERS 
(Civil Appeal No. 20 I of2005) 
FEBRUARY 25, 2016 
[ANIL R. DAVE, KURIAN JOSEPH, SHIVA KIRTI SINGH, 
ADARSH KUMAR GOEL AND R.F. NARIMAN, JJ.) 
Travancore-Cochin High Court Act, 1125 - s. 23 - Kera/a 
High Court Act, 1958 -- s. 9 - Code of Civil Procedure, 1908 - s. 
98(2) - Repealing of Statute - Effect of - Repealing provisions of s. 
9 of the 1958 - Effect of," on s. 23 of the 1125 Act - Provision of s. 
23, nature vis-a-vis s. 98(2) CPC - Held: s. 23 of the 1125 Act 
remains unaffected by the repealing provision of s. 9 of the Kera/a 
High Court Act - Section 23 being in the nature <if special provision 
vis-a-vis s. 98(2) Cl'C, would apply to the Kera/a High Court - s. 
23 of the Travancore-Cochin High Court Act, alone is to be applied 
when there is a d(/jerence of opinion between two Judges of the 
Kera/a High Court in any appeal, be it civil, crimi11al, or othenvise, 
before them - Jn such appeals before the High Court of Kera/a, if 
there is a difference of opinion between two Judges hearing such 
appeals in the High Court, there can be no doubt that the subject 
matter pertains to appeals in the High Court alone and not other 
courts - Those appeals can deal with civil, criminal, and other 
matters - Thus, the particular perspt?ctive demands the application 
of a uniform rule to all such appeals, which rule is provided by the 
special rule contained in s. 23, which in turn displaces the general 
rule which applies 11/s. 98(2) to all Courts and in civil proceedings 
only - Thus, the High Courts Act is a special law for the High 
Court concerned, the Code of Civil Procedure being a general law 
applicable to all courts -- It is d[!Jicult to say that the Code of Civil 
Procedure corresponds to the High Court Act. 
Disposing of the Reference, the Court 
Per R. R Nariman, .J. 
HELD: 1. *Hemalatha's case was wrongly decided. Section 
23 of the Travancore-Cochiu High Court Act remains unaffected 
1018 
PANKAJAKSHI (DEAD) THROUGH LRS. & OTHERS v. 
CHANDRIKA & OTHERS 
by the repealing provision of Section 9 of the Kerala High Court 
Act, and that, being in the nature of special provision vis-£1-vis 
Section 98(2) of the CPC, would apply to the Kerala High Court. 
[Para 51) [1071-D-E) 
2.1 Section 9 of the Kerala High Court Act, 1958, repeals 
the provisions of the Travancore-Cochin High Court Act, insofa1· 
as the said Act relates to matters provided in the Kerala High 
Court Act. Applying the test laid down in AB Abdulkadir case 
and Khan Sahib Abdul Shukoor case of this Court, .namely, that 
the subject matter of the two statutes must essentially be the 
same and/or that the main object and purpose of the statutes 
should be substantially similar, the Travancore-Cochin High Court 
Act formed the _Charter for jurisdiction to be exercised by the 
said High Court: This jurisdiction is exercised not only in civil 
matters but criminal and other matters as well. The main object 
and purpose of the Travancore-Cochin Act is to lay down the 
jurisdiction and powers of the High Court that was established in 
the said State. On the other hand, the subject matter of the Code 
of Civil Procedure is to lay down procedure in all civil matters, 
and no others. Also, the said Code would apply to all courts which 
deal with civil matters, sub.ject to the exceptions contained 
therein, and not only the High Court. Thus, it is difficult to say 
that the Code of Civil Procedure corresponds to the Travancore-
Cochin High Court Act. [Paras 8, 14) [1037-D; 1040-B-D) 
2.2 The scheme of Section 4(1) CPC, as its marginal note 
provides, is to "save" any special or local law from the 
applicability of the Code of Civil Procedure. The said Section 
therefore states that whenever there is a special, local, or other 
law which deals with any matter specified in the Code, those laws 
will continue to have full force and effect notwithstanding that 
they deal with the same matter as is contained in the Code of 
Civil Procedure. From this, however, an exception is carved out, 
aud that exception is that there should not be any "specific 
provision to the contrary" contained in the Code itself. [Para 17) 
(1041-B) 
2.3 Section 1(2) of the old Cr.PC 1898, corresponds almost 
exactly to Section 4(1) of the Code of Civil Procedure. The change 
in phraseology in Section 5 clarifies that what was intended was 
that the specific provision to
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